Florida Homestead After Death
Florida homestead protection does not end when the owner dies. The homestead passes free of the decedent’s creditors when it goes to the surviving spouse or to an heir the intestacy statute recognizes, no matter how much the owner owed at death. But the Florida Constitution also restricts who can receive the homestead, and those restrictions override whatever a will or trust says.
A home held in a revocable living trust still cannot bypass the constitutional rules, and selling the property after death often requires a court order.
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Does Homestead Creditor Protection Continue After Death?
A judgment creditor who could not force the sale of a homestead during the owner’s lifetime gains no additional rights when the owner dies. Article X, Section 4(b) of the Florida Constitution provides that the homestead exemptions inure to the surviving spouse or heirs. A recorded judgment does not attach to the homestead either before or after death, and the property cannot be sold to pay the decedent’s unsecured creditors.
The Florida Supreme Court established this principle in Public Health Trust of Dade County v. Lopez, holding that the creditor exemption continues after death without regard to whether the heirs were financially dependent on the homestead owner. Even if the decedent owed millions in unsecured judgments, the homestead passes to the heirs free of those claims. The protection attaches at death by force of the constitution. Nothing has to be filed and no deadline runs to claim it. Proving that a particular property qualified is a separate question a court sometimes has to answer.
One exception exists: if the owner’s will directs the personal representative to sell the homestead and add the proceeds to the general estate, the proceeds lose their protected status and creditors can reach them. Florida courts applied that rule in Knadle v. Estate of Knadle and Estate of Price v. West Florida Hospital. The Florida Supreme Court confirmed the exception in McKean v. Warburton, while holding that a homestead passing under an ordinary residuary clause, with no direction to sell, stays protected.
Florida Statute Section 736.1109(2) provides that a general power of sale or a direction to pay debts in a trust instrument does not expose protected homestead to creditors. Section 736.1109(3) reaches a trust-directed sale only where the home was not subject to the constitutional devise limits.
Who Can Inherit Homestead Property?
If the owner is survived by a spouse and no minor children, the homestead may be devised only to the surviving spouse. The owner cannot leave it to adult children, a trust for the children’s benefit, or anyone else. A devise to anyone other than the surviving spouse is constitutionally invalid, and the property instead descends as if the owner had no will.
If the owner is survived by minor children—whether or not there is also a surviving spouse—the homestead cannot be devised at all. It descends by operation of law regardless of what the will says.
If the owner has neither a surviving spouse nor minor children, the homestead can be devised to anyone. The creditor protection follows only a devisee who is the surviving spouse or a family member the intestacy statute lists in Section 732.103. A home left to a friend, a caregiver, an unmarried partner, or a charity passes to that person subject to the decedent’s creditors.
These restrictions apply even when the homestead is held in a revocable living trust. A trust avoids probate, but it cannot override the Florida Constitution. Courts have invalidated trust provisions that attempted to distribute homestead property in ways that violate the constitutional devise restrictions.
Tenancy by the Entirety Exception
When spouses own the homestead as tenants by the entirety, the devise restrictions do not apply. The surviving spouse takes full ownership automatically by operation of law when the other spouse dies. The property passes outside of probate entirely, and the will has no effect on it. This is a common ownership structure for married couples in Florida, and it sidesteps the complications that arise under the constitutional rules.
What Happens Without a Will?
When a homestead owner dies without a will, the property descends according to Florida’s intestacy statutes.
If the decedent is survived by a spouse but no descendants, the surviving spouse inherits the homestead outright.
Florida Statute Section 732.401 governs homestead descent. If the decedent is survived by a spouse and one or more descendants—whether minor or adult—the surviving spouse receives a life estate, with a vested remainder to the descendants in being at the decedent’s death, per stirpes. Per stirpes means the decedent’s children take equal shares, and a child who died before the decedent is represented by that child’s own descendants.
The surviving spouse may elect to take an undivided one-half interest as a tenant in common instead of the life estate. The election is made by recording a notice of election in the official records of the county where the property is located. It must be made within six months of the owner’s death and during the surviving spouse’s lifetime. Once made, it is irrevocable.
A life estate lets the surviving spouse live in the home for life. Selling the home requires the consent of every remainder holder. The one-half tenancy in common gives the spouse an ownership interest that can be partitioned. For a surviving spouse who needs to access the home’s equity, the tenancy in common election is often the better choice.
If there is no surviving spouse, the homestead descends the way any other intestate property does: first the decedent’s descendants per stirpes, then parents, then siblings and their descendants, and outward from there. Kelley’s Homestead Paradigm maps every family configuration to its corresponding inheritance outcome under Section 732.401.
Can Step-Children Inherit Homestead?
The Florida Supreme Court in Snyder v. Davis held that the word “heirs” in the homestead provision is not limited to those who would take under intestacy. Where the owner leaves no surviving spouse or minor child, the homestead can be devised with its creditor protection intact to any family member the intestacy statute lists in Section 732.103.
The Fifth District Court of Appeal applied that rule to a stepchild in Traeger v. Credit First National Association. A widow left her homestead in equal shares to her natural daughter and to her stepson, the adult son of her deceased husband. The probate court protected the daughter’s half but not the stepson’s, reasoning that he ranked lower under the intestacy statute.
The appellate court reversed. A stepchild falls somewhere within the class of persons the intestacy statute lists, so his rank did not matter, and he took his half of the homestead with full creditor protection.
Does Moving to a Care Facility Affect Homestead Status?
A homeowner who moves to a nursing home or assisted living facility before death does not automatically lose homestead protection. Florida courts have consistently held that temporary absence for medical reasons does not constitute abandonment, so long as the owner did not form the intent to permanently leave.
Once a home has homestead status, it keeps that status until the owner abandons it. An absence the owner did not choose is not by itself an abandonment, and the First District so held in Dean v. Heimbach. A homeowner who spends months or even years in a nursing home before dying generally retains homestead protection through death. The property passes to the heirs free of creditor claims, just as if the owner had still been living there when they died.
If a family member questions whether a parent’s move to a facility jeopardized the homestead, the question is whether the parent meant to give up the property as a permanent residence. Courts look at whether the owner kept filing for the homestead tax exemption, kept the property maintained, and claimed no other residence.
Selling Homestead Property After Death
Title insurance companies will not insure a sale of a decedent’s homestead unless the title examiner is confident that the property legally qualified as exempt homestead at the time of death. Public records show ownership, but they do not establish that the decedent was actually living there when they died. The owner may have moved, rented the property, or entered a care facility. A homestead tax exemption filing on record is not conclusive proof of residency at death.
When the decedent had creditors, title companies typically require a court order confirming the property’s homestead status before they will insure the sale. Obtaining that order requires opening a probate proceeding—even if the property was held in a living trust and there are no other probate assets.
The proceeding’s sole purpose is to obtain an order determining protected homestead status. The petition has to be served on everyone with an interest in the property, including creditors, who can contest it. This order confirms that the property is exempt from creditor claims and allows the title company to insure the transfer.
One practical workaround: because the homestead is exempt from creditors’ claims, it does not count toward the summary administration threshold. If everything else the estate has to administer is worth no more than $75,000, the estate qualifies for summary administration rather than full formal probate. Summary administration is also available whenever the decedent has been dead more than two years. It does not require appointing a personal representative and typically resolves within a few months.
Probate is generally not required when a surviving joint owner exists. Both joint tenancy with right of survivorship and tenancy by the entirety pass ownership at death. Similarly, if the decedent held only a life estate and the heirs already own the remainder interest, no probate is needed.
Property Tax Impact on Heirs
Florida’s Save Our Homes amendment caps annual increases in a homestead property’s assessed value at 3% or the rate of inflation, whichever is lower. For a home owned for decades, the assessed value can be far below market value, keeping property taxes low.
The cap does not reset when the home goes to the surviving spouse, when Section 732.401 vests it in a surviving spouse or minor children, or when a surviving joint owner already held the exemption. It also survives a transfer to someone who lived in the home permanently and was dependent on the owner.
In every other case the cap resets. The county reassesses the property at full market value as of January 1 of the year after the death. The new owner’s tax bill can double or triple compared to what the decedent was paying. An heir who inherits the family home and plans to keep it as a personal residence should apply for their own homestead exemption. That exemption starts from the reassessed market value, not the decedent’s capped amount.
A surviving spouse who continues to use the property as a primary residence can generally maintain the existing homestead exemption and Save Our Homes cap. The exemption transfers to the surviving spouse’s name without resetting the assessed value.
The Limits of Homestead Protection After Death
Two drafting choices strip the homestead exemption from the people who inherit: a will that orders the home sold and the proceeds paid into the general estate, and a devise to someone outside the family classes the intestacy statute lists. Neither the amount of the decedent’s debt nor the length of a final illness in a nursing home strips the exemption. The size limits and occupancy rules that govern Florida homestead law during the owner’s life decide whether the property qualified at death.
Spousal consent is required before a homestead owner can sell, mortgage, or transfer the property during their lifetime. When a trust distribution of the homestead violates the constitutional limits, title passes under Section 732.401 the moment the owner dies, and the trustee never has anything to distribute. The Third District applied that rule in Aronson v. Aronson, where the trustees of a revocable trust had no power over the home.
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